


<^- 



P 685 
583 



KANSAS CONTESTED ELECTION. 



SPEECH 



I-ION. A. IL STEPHENS, OF GEORGIA 



DELIVERED 



IN TFIE HOUSE OF REPRESENTATIVES, MARCH 11, 1856, 



On the Resolution from the Committee of Elections asldng for power to send for 
persons and papers in the Kansas Election case. 



-S' 



Mr. STEPHENS said: 

Mr. Speaker: It is not my desire to prolong this 
debate, nor do 1 expect to present any new points 
on the merits of the question before the House. I 
wisli, and intend only in what I have to say, to en- 
large upon and enforce some of the points made in 
the minority report on your table. I wish, too, in 
what I have to say, to liave the ear of the House 
rather than the ear of the counti*y ; not that I do not 
want the country to hear what I say, but my main 
object is to address myself this morning particu- 
larly, especially , and emphatically, to the attention 
of the House and upon the questions before us. 
These, sir, are grave questions. Tliey are ques- 
tions involving principles of the first magnitude. 
They are questions of a judicial as well as political 
oliaracterof the highest order, far above the small 
consideration of which of two men shall have a 
seat asa Delegate here. In deciding them, wc sit 
not as legislators, but as judges. Our decision 
upon this resolution, whatever it may be, will be 
an important precedent in the future history of 
tills country. Wc should , therefore, not act with- 
out due deliberation, careful reflection, and a full 
understanding of the principles involved; and we 
sh'ould also be stripped, as far as possible, of all 
party bias and all political prejudice. 

TJie proposition before us is one oi'an unusual 
character. It is for this House to exercise one 
of its extraordinary powers; that is, the power to 
send for persons and papers in a case before us, 
sitting as a court judging of the qualifications, 
election, and return of one who occupies a scat as 
a territorial Delegate upon this floor. Now, sir, I 
do not question the power of the House to exer- 
cise the authority invoked. The gentleman on 
my right from Pcimsylvania, [Mr. Kunkel,] in 
his remarks yesterday, spoke as if he thouglit 
those of us who oppose the resolution now pend- 
ing denied the power to send for persons and pa- 
pers in cases of contested elections; and he cited 
cases in which it has been done. On this point 
I wish to be distinctly understood; I do not deny 
the power in a proper case. Though no instance 
of its exercise has occurred since the act of Con- 



gress of 1851, regulating the mode of taking tes- 
timony in cases of contests for seats here; and no 
case need ever occur, as far e.s I can see, so long 
as that law remains on the statute-book. Its proi 
visions are full and ample. But should the case 
occur where it may be necessary, in order to get 
proper and competent testimony to establish any 
fact that the House can legitimately and properly 
inquire into in such investigations, to send for per- 
sons and papers, I do not question their pov.-er to 
do it. What I maintain is, that the power can be 
rightfully exercised only when it is done to pro- 
cure testimony which is in itself relevant, perti- 
nent, competent, and admissible, to prove such 
facts as the House can properly consider and look 
into. Nor do I wish to be understood as being 
inclined in the slightest degree to oppose investi- 
gation in this case to the fullest extent that can be 
properly gone into by us. Within these limits, 
I am in favor of the House taking the widest^ 
range and greatest latitude of investigation. But 
is the question before us such a one as would 
allow a hearing of the testimony sought to be 
obtained, even if it wei-e at hand.' I think it is 
not. It is to this point I now speak. 

What, sir, is the character of the testimony 
which is asked to be sent for? And what is the 
object of it i f obtained ? Sift the whole matter — get 
rid of the rubbish — go through both reports; and 
docs not the real gisi of this application amount 
to this: The memorialist wishes witnesses sent 
for to prove the invalidily of the law of a Terri- 
tory of the United States, under which a sitting 
Delegate was elected, on the ground that the 
members of the Legislative Assembly of that Ter- 
ritory which pas&H;d it were not properly and 
legally elected. Is not this a fair statement of 
the proposition as it now stands before us ■' It 
was to get this clear view of its merits before the 
House that I moved, when it was here before, to 
refer the proposition back to the committee, to 
have their reasons and grounds for making it re- 
ported to the House. We now have their reasons; 
we now know what is their object; and have I 
not stated it fully and fairly.' 'Then, sir, is the 



testimony competent if it were here? Mark you; 
we sit as a court. "SVould it be admissible in tlie 
trial of any cause in any court — in a criminal case, 
for instance — to permit a party to offer evidence to 
impeach the validity of the law under which the 
accused was arraigned, by showing that the Le- 
gislature that passed the law was not properly 
elected and legally constituted ? The vaHdity of a 
law may be inquired into and judged of by a court, 
on some grounds which migJit be stated. The 
constitutionality of a law maybe decided upon — 
tliatl do not question — but neverupon this ground. 
The rules governing all courts in passing upon 
laws and construing statutes, I need not here state. 
But no court, in judging of the validity of a statute 
on any of the grounds they take cognizance of, 
will ever allow an inquiry into the legality of the 
election of the members of the Legislature that 
passed it. No case can be found of this character 
in the whole history of civil jurisprudence. 

The reason courts of law will not allow such 
inquiries to be made before them is, that the de-' 
cision of all such questions properly belongs to 
another tribunal — to the Houses respectively of 
tlie law-making power itself; and their decision, 
when made, is considered as the judgment of a 
court of competent jurisdiction, which no othei* 
court will inquire into. And this House, sitting 
as a court as it now docs, cannot inquire into any 
fact invalidating or impeaching the validity of 
any law either-.of the United States, a State, or 
Territory, which any other court could not in- 
quire into. I assert this as a principle that can- 
not be successfully assailed. 1 call upon gentle- 
men who occupy a contrary position to show a 
case, if they can, in this or any other country, 
where the validity of alawin any court of justice 
was ever allowed to be impeached by inquiring 
into the legality of the election of the members of 
the Legislature that passed it. That is what we 
are now called upon to do; and that is what I 
assert we have no right to do. Why, sir, it is a 
fundamentpl maxim of the English law, laid 
down by Sir Edward Coke, illustrated by Sir 
William Blackstone, and enforced by every writer ' 
«n the subject, both English and American, that 
it is an inherent right of the High Court of Par- 
liament — from which, as a model, all our legisla- 
tive parliamentary bodies have sprung — to settle 
for itself all questions touching its own organiza- 
tion; and when such questions are thus settled, 
they cannot be inquired into elsewhere. 

What is the question now before us? Under 
that clause of the Constitution which secures to 
this House the right and power to judge of the 
qualifications, elections, and returns of those who 
may be entitled to hold seats on this floor, we 
have brought to our consideration the right of 
the silting Delegate of the Territory of Kansas. 
Into his qualifications, election, and return, we 
have full power to go, and to determine all ques- 
tions pertaining either to his qualifications, his 
election, or return. But in doing this, we are 
asked- to take a step further, and to judge not 
only of his election, -return, and qualifications, 
but to go into an investigation and judge of the 
qualifications, elections, and returns of the mem- 
bers of the Legislative Assembly of Kansas, 
which passed the law under which it is admitted ! 
he was elected. I say, sir, according to the prin- [ 
•iple v/hich I have laid down, no case in the par- 



liamentary history of England, from whicli all 
! our institutions have sprung, or in this country, 
j can be adduced to justify or warrant it. I beg 
j leave to call attention to some authority on this 
' point. I read'from Sir Edward Coke, (4 Inst., 
\ p. 15;) in speaking of the High Court of Parlia- 
1 ment, he says: 

I "And as every court of justice hath laws and customs ft>r 
I its direction, some by the coiniiion law, some by the civil 
I and common law, some by peculiar laws and customs, &o., 
I so the High Court of Parliament, suh jn-opriis Icgihus et con- 
I suctudinihus suhsialit. It is lex nt consuciiflo farliamenti. 
I "And tliis is t!ie reason that tlie judges ought not to give 
j any opinion oi" a matter of Parliament, because is not to be 
I decided by the eommon laws, but secundum legem et con- 
! suetudinem parliamciiti ; and so the judges in divers par- 
j liaments have confessed." 

I On any matter relating to the constitution, or- 
i ganization, rights or privileges of the members of 
' the House of Lords, the Commons cannot inter- 
j fere. In like matters, relating to the organization 
; of the House of Commons, the Lords cannot intep- 
I fere. No other court in the kingdom can interfere. 
The highest court of the realm — the King with 
the prerogatives of the Crown — cannot interfere. 
On all these matters each House is a court with 
full, ample, absolute jurisdiction over the whole 
subject. And when they are determined by that 
court, with full and coinpetent jurisdiction over 
tlie subject-matter, its judgment cannot be inquired 
into by any other tribunal. Sir Edward Coke 
says further, on page 50, same volume: 

" Thus much Iiave we thought good to set down concern- 
ing knights, citizens, and burgesses ; because much time ^ 
spent in Parliament concerning llie right of eli!Ctions, &c.j 
which might be more profitably employed jrro bono jmhlico." 

This latter remark is not very inapplicable to 
our condition. But the author goes on: • 

" Now, to treat more in particular (as it hath been de- 
sired) of the laws, customs, liberties, and privileges of this 
cowr/of Parliament, which are the very heart-strings ofttio 
Commonwealth," * * * " would take tip a whole vohiino 
of itself. Certain it is, as hath been said, that curia purlia- 
jxienti suis ■propriis Icgibus subnslit." 

And he goes on to say that it does not belong 
to the Justices of England, or the Barons of the 
exchequer, to judge of any of these matters coming 
within the jurisdiction ofthis court of Parliament. 
Now, sir, 1 invite attention to what Sir William 
Blackstone says on this subject in his Comment- 
aries, with which all of us ought to be familial. 
After referring to these remarks of Coke, and 
affirming them, he says, in vol. I. p. 163: 

" It will be sufficient to observe that the whole of (he 
law and custom of Parliament has its original from this ono 
maxim, 'that whatever matter arises concerning eitlipr 
House of ParUanient ought to be examined, discussed, awl 
' adjudged, in that House to wliich it relat-es, and not clse- 
• n-hcre.^ Hence, for instance, the Lords will not suffer tins 
Commons to interfere in settling the election of a Peer of 
Scotland ; the Commons vfill not allow the Lords to judge 
of tlio election of a burgess; nor will either House permit 
the subordinate courts of law to examine the merits of 
either case." 

All such matters are to be decided by the 
[ Houses of Parliament, respectively, not arbitra- 
! rily, but according to the usages, customs, ard 
I precedents in like cases, which constitute the hx 
iParliammli, or law of Parliament; but when de- 
1 cided, whether right or wrong, there is no power 
j to reverse the decision. Just so, sir, with us; 
I when this House passes judgments upon tha 
: qualifications or clcctidii of a member here, it is 
j final and conclusive. Here the matter is to ba 
I examined, discussed, and adjudged; and, when 



i 



3 



adjudged, it cannot bo inquired into elsewhere. 
So wilh every legislative body. On this point, 
I now call the attention of the House to what 
Mr. Justice Story says upon the same subject in 
speaking of this clause, in his treatise upon the 
Constitution of the United States. After quoting j 
the clause of the Constitution which provides j 
that each House shall judge of the qualifications, i 
elections, and returns of its own members, he 
says, in vol. II, p. 295. 

" Tlie only possible question on such a subject is as to 
Vie hadii hi wliieli such a power shall be lodj^ed. If lodged 
in any other than the le<^islativc body itself , iti^ independence, 
its purity, and even its existence' and action, may be de- 
stroyed or put into iuimiftentdanger. No other body but it- 
self can have the same motives to perpetuate and preserve 
these attributes ; no oilier body can be so perpetually watch- 
flil to gnai-d its own rights and privileges from infringement, 
to pufify and viiulioate its own character, and to presei-ve 
tlie riglitg and siistain the free choice of its conslitucuts. 
Jiccoydin^hi, the power has always been lodged in the legisla- 
tiite hodytij the uniform practice of England and America." 

If more authority is desired on this point, I 
refer to Kent's Commentaries, Tucker's, and to all 
writers on the subject. It is the uniform practice. | 
of this country, adopted lYom England, to leave [ 
the adjudication of all questions touching the elec- ! 
tions and returns of members of legislative bodies ; 
to those bodies themselves. The principle runs ! 
through all our State Legislatures. It liesat the | 
foundation of all our representative institutions. ] 
It is recognized even in all pur voluntary associa- , 
tions and conventions, whether civil or ecclesias- j 
tical. There can be no efficient pohtical legisla- j 
tive organization without it; and when the legis- 1 
lative body, to which the question belongs, has j 
made its decision, there is no appeal to any other ! 
power. It is a final judgment rendered. It is so j 
with the decision of tliis i louse on such questions. 
It is so with tlie decisions of the Senate on.likc 
questions. It is so with the State Legislatures, 
and it should be so in Kansas. If the election of 
any meijiibers of the Legislature there, eitherof the 
House or the Council , was illegal , the proper place 
foran inquiry into it wastherc. Andif any person 
wishing to contest those elections failed to present 
tlieir case there before the proper tribunal, they 
cannot come here to do it. If we inquire now into 
the legality of those elections for the purpose of 
disregarding or invalidating the law j^asscd by the 
Legislature, under which the sitting. Delegate was 
elected, why may we not inquire into the validity 
of the law of Congress organizing that terri- 
torial government, upon the grounds that some 
of the members of this House v.ho voted for it 
in the last Congress were not pro]ierly elected.' 
Or on the ground that some of the Senators who 
voted for it were cliosen by members of State 
Legislatures not properly elected.' And, this, too 
pn the still farther ground that some of the sher- 
iffs or returning officers in the State elections for 
members of the Legislature perhaps were not 
legally elected or qualified.' If you open the 
door to such an investigation as that now sought, 
where are we to stop .' Who can see the end of this 
begmning? Whose vision can take in the wide 
e-xtunt of that vast region of uncertainty, inse- 
curity, abounding in hidden unseen dangers and 
perils, your course may lead to .' I hold, sir, th&t if 
a law should be passed by the votes of members 
now upon this floor who may hereafter be turned 
out because of the illegality of their election, the 
validity of such law so passed can never be in- 



quired into either by any court of the land, or 
even by ourselves, on the ground of its having 
been so passed. And though a la^v may be 
passed in a State or Territorial Legislature by 
the votes of members who may afterwards be 
turned out, because of the illegality of their elec- 
tion, yet the validity of such a law can never be 
questioned in consequence of that fact. But if 
the principle, now atlvocated for the first time in 
our history, shall be established, and the prece- 
dent be followed up, you unhinge all legislation; 
you bring everything like law amongst us into 
uncertainty, doubt, »nd confusion; you cut the 
"heart-strings," as Coke says, of our whole 
system of Government; you take the first step, 
and, if it be pursued, that which will prove to be 
a fatal step towards political and social anarchy. 
I enter my protest here this day against it. 

I repeat, sir, these are grave questions. I give 
you, Mr. Speaker, and the members of the House, 
as my fellow-judges in this matter, my views of 
the rules which should govern us in the judgment 
we are to render in this case. Weigh them an 
they deserve, and give them such consideration as 
they merit. , 

But, the gentleman at my right, [Mr. Kunkel,] 
who addressed us yesterday, asked, if the allega- 
tions be true as here made, that a set of usurpers 
assumed to be the Legislature of the Territory, 
are we to be bound by that assumption .' I say 
to him, no. The countenance of any usurpatioa 
I and the exercise of prerogatives, not duly bclong- 
{ ing to any body of men, even ourselves, is what 
( I am agamst. There must be something more 
I than a bare assumption of legislative authority to* 
i entitle the acts of any body of men to be recog- 
nized as emanating from a body clothed with 
j power to make laws. The law-making power of 
j this country must rest upon some better showing 
than bare assumption. It must come into being 
j in the proper and legally constituted way. This 
I is well understood in America. We are not by 
i any means legitimists, in the European sense of 
j the word; but we recognize that government as 
]eo;idmate which springs into existence by the 
j will of the people, as expressed under the forms 
: of law.passed by the regularly-constituted author- 
j Uy of the land. A government so presenting 
j itself v/e regard not only as the government of the 
people dc facto, but de jure. 

j And now, sir, how is it with regard to this 
I Legislatiu-e of Kansas .' We have a law of Con- 
I grcss authorizing it. It is familiar to all. That 
j law organized the Territory of Kansas; that law 
j permitted the people thei-e, under the direction 
j of the Governor, to hold elections for membera 
of the Territorial Legislature, with power to pass 
j laws regulating the election of a Delegate to Con- 
Igress. "This organic law of the Territory cma- 
j nated from ourselves. This law we are bound 
1 to recognize. A Governor was appointed in pur- 
Isuance of it. The Governor, the judiciary, the 
'■ whole machirjery of the government there was 
'legally constituted by ourselves, by; Congress; 
j and the forms prescribed, through which this ter- 
j ritorial body exercising legislative functions came 
j into existence, emanated from the highest author- 
; ity known to us under the Constitution. These 
j facts are admitted. No person questions the pub- 
j he law creating the Territorial Legislature. No- 
1 body questions the legal appointment of Governor 



Reeder. Nobody questions the proclamation he 
issued to hold an election on the SOtB of March, 
1855, for a Territorial Legislature in pursuance 
of our law. These are all admitted facts. If any- 
thing irregular, then, attended the election of its 
members, it presented a question to be inquired 
into and adjudged by the proper authority just as 
similar matters are inquired into and settled in 
other elections of legislative bodies— jusc as we 
inquire into such matters pertaining to our owii 
organization. When, therefore, it is admitted 
that an election for members of the Territorial 
Legislature Avas held in KfCnsas on tlie 30th of 
March, as stated in pursuance of law, under the 
direction of the legally-constituted authorities of 
the country, we are bound to recognize the body 
so coming into lift as legitimate in its origin. It 
certainly did not spring from usurpation; nor does 
it rest its claims of legitimacy upon bare assump- 
tion. It had its birtii in a legal way. 

Buthere comes the argu.mentfrom the other side 
that it was spurious, because the members who 
constituted it were not -properly elected in' con- 
formity to the laws under which it was created. 
Well, sir, that was a judicial question to be set- 
tled and determined by the lex pmiiamenti, ac- 
cording to the authorities I have cited, and the' 
miiversal practice of this country in like cases. 
It does not come within the purview of the pow- 
ers of this House to settle that question. It was 
an inherent right in the Houses of tljc Kansas 
Legislature to judge and decide upon, the quali- 
fications, elections, and returns of their own 
members respectively. This power, says Story, 
*by universal practice in Englaiid and in this 
country, is lodged in every legislative body to 
determine for itself. It is, indeed, one' of the 
vital functions of the organism. The question 
was a judicial one, which somebody was to de- 
termine; and what body v/as it.' The courts 
of the country (say all the authorities) cannot 
take cognizance of it. Governor Reeder, as it 
appears from the papers before us, insisted that 
it was his right, under the law empowering him 
to prescribe the rules governing the election, to 
decide it; and the two Houses of the Legisla- 
ture insisted that it was their parliamcntarj' and 
legal right to decide it. My opinion is, that the 
Houses were correct in their position. But, be 
that as it may, the merits of the question before 
us are not affected by it either way; for, if 
Reeder, as Governor, had the right, it- is an ad- 
mitted fact that, out of twenty-six members com- 
{)osing the House of Representatives of Kansas, 
le, as Governor, claiming the right to judge of 
this matter, did judicially, and not ministerially , 
award certificates to seventeen of these members, 
as having been duly and properly elected on the 
30th March , in pursuance of his proclamation duly 
and legally made. And like certificates he gave to 
ten out of the thirteen members composing the 
Council. Thus a large majority of both branches 
of the Legislature were adjudged by him to be duly 
chosen and returned members thereof — members 
whose election, he now says, was carried by an 
invasion, and that they held the places which he 
assigned them by nothing but usurpation ! I am 
not now upon the question of his estoppel; I am 
consideringthe question of his right to judge, and, 
in that view, the effect of his judicial judgment 
rendered in the case. Keep in mind that, upon 



every question before any tribunal whidi has the 
sole and absolute right to judge in the matter, 
when the final judgment is rendered, it is forever 
conclusive upon the points embraced in it. Elec- 
tions were held in May, by order of the Governor, 
to fill the places of "the nine members and six 
councilmcn rejected by him at the March election. 
To those elected in May to fill those places he 
gave like certificates. Every man who took his 
scat in the Legislature at its organization was 
adjudged arid certified by the Governor to be en- 
titled to it. The Legislature, therefore, if the 
Governor had the right to judge, was legitimately 
and legally constituted; and their claims to be 
recognized as the proper law-making power of 
the Territory rests not upon bare assumption or 
usurpation. And, on the other hand, if the Houses 
had the right to settle these questions touching 
their organization , the result is the same; for they, 
too, settled the question the same way as to the 
original seventeen members of the House and ten 
councilmen, and their judgment must be conclu- 
sive upon the fact that a majority of both Houses 
were properly constituted. In either view, there- 
fore, we may take as to the hands in which this 
power of judging was lodged, the question is a 
closed one; it is res adjiulicatce, and we have no 
right now to open it. I i-epeat, I am not now 
upon the point of Reeder 's individual or personal 
estoppel in law. AVhat I aflirm is, that this ques- 
tion, from admitted facts, is closed; judgment has 
I been rendered, and there is no appellate jurisdic- 
tion in this House, nor in any other tribunal. Wc 
can no more open this question than we can that 
of the proper organization of any State Legisla- 
ture. 

The gentleman on my right to whom I have 
alluded^ [Mr. IfuNKEL,] said, in the course of his 
I remarks yesterday, that we, this House, have got 
j a right to go, and have often gone, into an inquiry 
I into the validity of the laws of the States in judg- 
j ing of elections to this House. Sir, I do not'denjr 
this. I admit that we may pass upon and judge 
I of the validity of any law coming before us in 
1 such cases, just as any court may do, and upon 
just such grounds and such grounds only as courts 
; may properly do. The grounds upon which this 
i inquiry is sought courts will never inquire into, 
i and we have no right to do it. There are some 
I matiters touching legislation and the rules govern- 
ing the law-making power which must be consid- 
[ ered as closed; and when judgment is rendered 
in them it must stand until the great day of judg- 
ment. 

Mr. SIMMONS. Will the gentleman allow 
me to ask him a question ? 

Mr. STEPHENS. With pleasure. 
Mr. SIMMONS. I ask whether a judgment 
is valid for any purpose whatever, until i t be shown 
that the party in whose name it is is the true 
party .' 

Mr. STEPHENS. To ascertain the true ai)d 
proper party is part of the proceedings before 
judgment. That is one of the matters to be settled 
"by the judgment, and when once settled by judg-' 
ment finally rendered by a court of competent 
jurisdiction over the subject-matter, it iS settled 
forever. Whether the party in whose favor it be 
rendered be the true party or not, cannot be in- 
quired into afterv/ards or elsewhere. And so in 
this instance persons presented themselves as the 



elected representatives of the people of Kansas, 
in their Legislature. They pi-esented their cre- 
dentials: the Governor claiming the right to pass 
judgment judicially in their favor, certified that 
they were the proper and true party. They then 
took up their own credentials in the usual way 
of Legislatures, and came to a similar judgment, 
as to a large majority in both Houses. That 
judgment, viewed either way you please, is final 
on that question. That is my answer to the gen- 
tleman. 

But the gentleman from Pennsylvania, in speak- 
ing of the inconsistency of Governor P^eeder's 
course — for even he seemed ready to admit his 
great inconsistencies 

Mr. KUNKEL. No, sir; I said it was not 
necessary to my argument to prove that Gov- 
ernor Rccder was consistent. 

Mr. STEPHENS. And the gentleman added 
that he could not speak for his consistency. 
Now, what I was about to submit to the House 
is, whether anybody can defend his course? I 
intend to speak of the facts as they are detailed 
before us in these reports, and as we know them 
to be. He was duly appointed Governor of Kan- 
sas. He accepted the trust and was in office, 
when, according to his own showing, the election 
which took place in that Territorj^ on the 30th of 
March was held in pursuance ot his own proc- 
lamation. Twenty-six members of the House 
of Representatives, and thirteen members of the 
Legislative Council, were elected. These were the 
numbei-s of which the Houses were respectively 
composed. He assumed the right to judge of the 
election returns of these members. The rules gov- 
erning the elections were prescribed by himself, 
and very rigid ones they were. The judges of 
elections were required not to allow any non-res- 
ident to vote, and to take an oath that they would 
not. These returns were submitted to hun, and 
he examined them. He ratified the returns, and 
gave certificates to seventeen members of the 
House, and rejected but nine. He gave certifi- 
cates to ten members of the Council, and rejected 
three. He ordered a new election to be held, to 
fill the places of those vacated by himself, but 
the two Houses, as I have stated, assuming the 
right to judge of the qualifications of their own 
, members after they met, decided in favor of 
those who had thehighestnumber of voteson the 
first election. 

But, sir, it was three months and upwards from 
the' holding of this March election until the Legis- 
lature met. He then said nothing of what we 
now hear of the manner of this election. But he, 
as Governor, upon being notified that they were 
organized in obedience to his own call, addressed 
them as the legally-assembled and constituted 
Legislature of the Territory. As late as the 21st 
of July, after the Houses had acted upon the subject 
of the contested seats in the cases of the nine members 
and three councilmen rejected by him, he again ad- 
dressed, them in a message, and in it he says 
nothing of an invasion. He says nothing of 
subjugation— nothing of "martial music" and 
"artillery" — nothing of "border ruffianism" — 
nothing of their action in the cases of contest referred 
to. But he addressed them then as the legally-con- 
stituted Legislature of the Territory. If, there- 
fore, Governor Reeder had the right to judge of 
the election returns, as lie claimed, was not liis 



acquiescence in the decision of the Houses on mat- 
ters pertaining to their organization an affirmance 
on his part of their judgment in those cases .' And 
at his instance shall we now go behind, not only 
the judgment of the Houses of the Legislature on 
these questions, but his affirmance of that judg- 
ment by an official act of Governor Reeder him- 
self.' 

But, sir, I wish to notice some other matters that 
have dropped in this debate. Another gentleman 
from Pennsylvania, on my right, [Mr. Camp- 
bell,] gave as a reason why this investigation 
should be gone into — why we should set aside 
Governor Reeder's own judgment in this case — 
that he was a gentlentan of high character — a 
man of worth, standing hi^iinthe estimation of 
the people of his State, and that this investigation 
was due him as such. Well, Mr. Speaker, I say 
to the gentleman that, if what Governor Reeder 
now says be really true, he certainly has for- 
feited and lost all just claims he may have had to 
the high and exalted opinions of his countrymen; 
he certainly shows himself guilty of the most 
flagrant and gross dereliction of duty that any 
public officer in the whole history of the coun- 
try was ever guilty of. The gentleman from 
Pennsylvania must admit that if the Territory 
committed to his chargewas invaded by an armed 
force, by which the legally-qualified voters of the 
Territory were driven from the polls in every dis- 
trict save one, and the polls seized by non-resi- 
dents, who by violence carried the election — if 
that be true which Governor Reeder now affirms 
to be true — if that took place which he now says 
did take place, and he silently sat by and saw all, 
and afterwards recognized these invading hordes 
as the duly-elected Legislature of the people, as 
he certainly did, then he was guilty of abase dis- 
regard of his official duty, without a parallel in 
our history, and one that no depth of infamy and 
degradation would be too low to assign him to, 
for. 

Mr. CAMPBELL, of Pennsylvania. Tf the 
gentleman from Georgia will allow me, I desire 
to ask him, if these things tan be substantiated, 
why deny to Governor Reeder this investigation ? 
Governor Reeder is ready to prove that his course 
was consistent, honorable, and proper. I ask 
that the gentleman will hear him, and then decide. 

Mr. STEPHENS. Governor Reeder can never 
show that his course was proper and becoming 
an officer in his position, if what he states be true. 
I am not for this investigation, because I do not 
think it is right to make it. I do not regard it as 
a part of my duty to make improper investigation 
to sustain a man who, by his own statement, 
shows himself to have been guilty of a gross dis- 
regard of his official duty. So far as he is con- 
cerned, his showing makes no favor with me. 
Wiicn a man comes here, and on his own state- 
ment, out of his own mouth, makes it appear, if 
his statement is to be credited, that he was guilty 
of the grossest neglect of duty, it does not com- 
mend him to my favor. Such statements or calls 
for investigation have not much force in inducing 
me to follow his example in the commission ofia 
wrong, or in disregarding my official duly. But 
whatl was about to say was, that if his state- 
ment be true, he is not now entitled to that high 
encomium which tlie gentleman pronounced upon 
him. If he, as Governor of a Territory, per- 



jnittod such unlvear(J-of outrages to be committed Ij ing how the gentleman 'a declamation can be an- 
tliere without a word of complaint, but giving his: j i swered . Every community, sic, must judge for 
Sflnction to the \v-hol« of tlitim— which, uppn his Jj itself in all such cases, both ne to the grade of 
own showing, you must adijiit he did — then ha is ji the crime and the punishment to be inflicted, 
not entitled to that high position which the ^en- !' But to the gentleman, in this case, I would say 
tleman says ho occupied, in the estimation of the : as Scotland's poet said to the " unco guid." of 



his day- 

" Oil, ye who are so good yourself, 
t^o pioua and so liply ; 
, Ye-wenouglUtatJ'P buM"'*f^ •''"'' ^'^'l 
'"• 'Voiir'neigiibor's faults and folly. 

«« Yd see y^ur sta^e vyirti theirs compared, 
And shudder af. the Tiifler ; 
But. kisia motii^Tit-s fair reiard. 
What makes tlic mighty differ !" 

It is only on the point as to tlie extent of tlie- 
punishment that the Ohio laws, in this instance, 
differ from those of Kansas. Now what I main- 



pi^ople of Pennsylvania, before ho left tliat State. 
It ma}'- be true that Governor Reedcr, while in 
Pennsylyanic\j,>v;«i3 a gentleman of good char- 
actor and high standing. That docs not show; 
tliat ho is entitled to be held in the saxiie estima-! 
tion now.. His course, by which he may have 
justly t\jrfoited that character, we have before us. 
Neither is lus present position, contrasted with | 
his former, an isolated or. singular one. A gen- 
tleman once oGcupted" a position in this cauntry 
second to no one then living. For thirty-six 
ballots he held the votes of this House, in even 

balance, for the .Chief Magistracy, of the country. ^ . . , .,, ^ , ■ , ^-.i rr- •, 

He stood shouldec to shoujder with a head quite ii [^"^ i^' tl>^^] ^' '^^'Y ^f Hiese laws pf the Territory 
8^ high as that of Jefferson himself. Who stoodjl ^f ""f S^^'i ^"'T^ ''^''''^? laws suited to the peo- 
higher then than he ? Who shone brighter then I P''^ ^''=''^' ^""l ^IT^. ^"^ changed by the people m 
than these two men? Twin-broihereinaoH.tics,as il the regular legislative way. We, belong, sir, to 
two morning stars they appeared risitig together i ! ^ government of law ; and it is the duty of every 
in tlie day-dawn of our nation !s glory-, but dis- 1' ^"".^ ^'^'^F" ^^ sust,ain the lawas it exists, unul it 
appointed hope, and blasted ambition, caused I- i^''l\^"S'?'*''^"^\"'^'''^^^'^'^7'?'^^P'^°JJ?r'''^^^'?''"^y'<^' 
Aaron Burr- Hke Lucifer-like the ai-changel, |i ?"''' '^ V>''-^"'^7cf°'' '■^'"°'i"r ": What character- 
standing high in heaven, next to the Throne it- il ^^fs the United States ai«l distinguishes us above 
self, to fall, and from his fall to rise no more, jl ^'^ ''^}''^'' "^^^'^."^ •""'■''' distinctively than this— 
It may be so with Governor Reodor. A man hc.'i '^'^^ ^'T ^''t" ^^''^^^'^ government of laws ema- 
may have been of high character, fair fame, and ii n^iting/rom those whs are controlled and governed 
high ambition; but his ambition \ws " overleaped 11^^ f ""'^^ constitutions? If our laws are wrong 
itself," and fallen on th.o other side. History, I ^''^ ^'^>''^ '^""i '° S*^ ''^ ^^'^ polls-to the ballot-box 
dare say, will assign him his true position. Thei-e I -^° have them amended, corrected, and suited 



let him rest. We are to deal witli the facts as j 
they appear before us. I 

The gentlemnn from Ohio, [Mr. Bivgham,] i 
the other day, said the legislation of the Terri- 1 
tory of Kansas was nidi and void upon its face, i 
He wished no better evidence of the invalidity 
of the laws than that which is to be found upon ! 
their inspection. He read one of their acts, ' 

which makes it penal for any individual to steal ., , , , , .- , ,■,.,, 

a slave, or to induce him to run away from his i| r^'' ^:",'"*'^ ''7*^ showing us tluU such illegal a^xd 

master, or to harbor f^ich ' " ' ~ 

pronounced more infamous 

and asked whether we were Douna to recoirnize , , .-,.,. , t -, , • ,- , 

as valid any such law, as this, and some others - hesitated in doing what I could to give him the 



to the pubhc' wants. To the ballot-box, and not 
the carlrid^e-hox, the people should go to settle 
questions fouching the character of their laws. 
"/»('«• anna silent leges." If, by the Kansas Itrw 
regulating the election of a Delegate on this flopr, 
any person is allowed to vote who were not cn- 
tiilcd to vote under their organic law, and atiy 
such perspn in the late election did so vote, and 
Governor Recder had gone into the contest, and 



to run away from his n . "^' ■ " '"'" ow^„.,.^ „^ w.c.. o„v.m ...>,gcw «^«* 

slave. Sachacodehei!"^^P™P^^'^"^^'^^'^^ ^^''■" P"''^'' f""'' ^1'? s'^tinff 
13 than that of Draco, -! member, and that he had received a majority of 
ere bound to reco"-nize i^ J^e legal votes of the Territory, I should not have 



he mentioned. Why, sir, there is a law in the 



But he did no such thing. He and his 
up in opposition to the 



gentleman's own State, Ohio, that punishes any i' f"*'"'^^^ set themselv ^ . , . _ 

person who entices an apprentice to run away, ij '''^^^' denied its force and vahduy, and are now 
or who harbors him after he has run away, d ^'''''"P'"^^^*' ^^'*'''^^^''"^v the only government and 
Whoever harbors an apprentice escaping from j! ^^^'''"^ of laws m that Territory to which the 
the tyranny, perhaiis, of his master— an orphan ij P'^'^ple can look with confidence and .security for 
boy, it may be— whoever gives him bread in his/ t^cp'-otoction of their lives, liberty, and property, 
wanderings- as the gentleman was very pathetic j| Jy}^^ clamor, sir, about a luiijority of the peonle 
I must follow him— under the Ohio law is subject li °f Kansas being opposed to General Whitlield's 
to indictment and punishment. The man that ij '^'eclion nere will not do: it will not bear the teat 
would give one, thus in distress, shelter and a ;! ^^ notorious facts. If it were so, why had he no • 
cup of water !| competitoratthepolls? Where wasReedcrthathe 

Mr. BINGHAM. Did Ohio law make it a ij '*'^^""'^'}o^^ his relative strength with him before 
felony? i; the people? This is not the first time that General 

Mr. STEPHENS. No, sir; but it makes it a 'i Whitfield was a candidate before them. He wa»' 
crime. Tiic only difference between your law |! 'fleeted m November, 1854. At that time he had 
and that of Kansas is as to the grade of crime I competition. 1 have before rne the rt/5cial poll 
and the extent of punishment. . ij made out and j?ntered upon the executive minutes 



What law does, tlie gentle- 



Mr. BINGHAM, 
man refer to ? 

Mr. STEPHENS. I refer to the law in refer- 
ence to apprentices, and the enticing them away 



by Governor Redder himself. Here axe the en- 
tries: 

"December 4, 1854— The jtidgns of the Reveral elccUon 
districts nu-ulo retiimof the votes pnljedatthe eloctioii held 



.m not complaining,of the law, but only show- [ S^^^Sv^f r[Sr^;;i^^^^^^":£'t. 



First..., 
Second. 
Third.., 
Foiirlli. 

Fifth... 



Seventh 

Eighth 

Ninth 

Tenth 

Eleventh 

Tvvclfih...... 

Tliirteeiitli... 
Fourteenth... 
Fifteenth .... 

Sixteenth.... 

Seventeeutli., 



■^, I 



Itt 



2,258 248 305 16 2 2 1 



St 



i Send the committee out tliere if a full invcstiga- 

^ j <ion is what you ai-e determined on, with the 

\ same power in the premi.sos; and let them make 

s I; their investigations upon the " battle grounds," 
I I j| if they are to ^jc found in the vicinage of the 



" Deccmher 5, 18r>4.— On examining and collating the re- 
turns, J. W. VVIiitfield is declared by the Governor to he 
duly elected Delegate to the House of Representatives of 
Ux! Lfnitcd .States; and same day certificate of the (Jovcmor, 
under the seal of the Territory, issued to said J. VV. Whit- 
field of his election." 



voters. If you are going a-fishing for all the 
facts in real earnesT, why not make a completa 
; drag of it at once.' Send out the arms of your 
i net far and wide, and make a thorough haul over 
the whole broad territory, and bring to land every 
; thing, whether fish, eel, or serpent.' 
I But, Mr. Speaker, in conclusion, I am against 
this resolution for another reason. I am against 
it because it is but a part and parcel of a policy 
I now pursued by some men in Kansas and else- 
I where, which cannot be looked upon in any other 
I light than revolutionary in its character. Gentle- 
! men cannotbe mistaken in this particular. There 
I are men in Kansas who seem to have resolved en 
j rebellion. They wereamong the original enemies 
of the Kansas bill. When their leaders wore 
I beaten in this House and in the Senate, and that 
great measure of sectional and national equality 
] was carried against and over their votes, they 
betook themselves to new schemes to prevent its 
! potent influence in allaying agitation, and to make 
: it the occasion of continued strife and discord. 
I The Territory was not left to settlement by the 
people of all the States equally and fairly, as the 
: laws of climate, soil, locality, production, and 
: population might determine; l)ut emigrants from 
V distant points were stimulated, if not hired, to »o 
Here the number of votes appear officially and ] there with no purpose but mischief. Their main 
in full, in all the election districts in that Terri- !: object was not to become bonajidc settlers, but to 
tory, numbering from one to .seventeen. There }: control the first elections. In this they were 
is the poll, examine it — for J. W. Whitfield, i beaten, as fully appears in the present sitting 
2,258; for J. A. Whitfield, which was by mistake I Delegate's first election which I have shown, 
for his name, 248; making his real, entire vote [; They were also beaten in the first election of 
2,50G; and for Flenniken,"lii3 highest opponent, t members to the Legislature, as appears from the 
0*1 ly 305. The whole number of votes polled {certificates before alluded to, given to the mcmbera 
were 2,833; so that Whitfield in that contest re- li of that body by Governor Ileeder himself. And 
eeivod more than eiglit times the number of votes j: now, disappointed, discontented, lind di-saflrected' 
polled for Flenniken, his highest opponent, who |; at these series of defeats in their design.s- and ob- 
was the candidate of Reeder and his party, and .1 jects, they are about to betake themselves to the 

■ ' last resort of malcontents — a trial of physical 
i force. Arms are collected — fortifications are built 
I — munitions of war are provided — Sharpe's rifles 
' are procured — volunteers ai-e invoked — aid and 
i assistance from a distance are looked for — ^hioney 
I is raised, and hostility against the existing legally- 
j constituted authorities is openly avowed. The 
! telegraphic dispatches of this morning announce 
I that the government proclaimed by the Topeka 
i convention is to go into operation at all hazards. 
All these movements are lawless, insubordinate, 
and insurrcctionaiy. Governor Reeder may be 
considered as at the head of them, the commander- 



who now pretend to be a majority in the Terri- 
tory. At the last election Whitfield got 2,936 
Totes, without opposition. 

Mr. CRxilGE. What has become of Fleoni- 
keii.' 

Mr. STEPHENS. Flenniken flunked ! The 
la.st 1 hoard of him he was on his way back east, 
where he came from. [Great laughter and a 



Iilause upon the floor and in the galleries.] 
la . . . ™ . 



m 



has never been in the Territory since, as 1 have 
been informed. 

Mr. Speaker, I do not think that the investi- 
gation now sought is right, for the reasons I have ^ 

given. I am opposed to itin toto. But ifit is to be | in-chief of the whole of them; and his movement 
gone into, would it not be much better to send out h here can but be viewed as a part of his general 
a commission, as is suggested by the minority ij plan of operations. Any countenance he may 

I of the Committee of Elections? Nay, I go fur- j; seem to receive, therefore, at our hands, can but 
ther. Would it not be much better to send a com- ji favor his ulterior designs. Tiiis must be all he 

' mittee of the House — the Committee of Elections 1 1 looks for. He cannot expect to be voftd a seat 
tJiemselves, if you please .' If we are to go through I j on this floor. 

! with this exceedingly complicated aflair, would it | Now, sir, let us pause and reflect. How far in 
not be better for the committee to go to the hun- j ' this business do you intend to proceed .' Are you 
reds and thousands of witnesses that may have |' going to back those deluded men in Kansas whom 
to be examined, than to bring such a " cloud " i Governor Reeder represents here, while they 

! of them to the committee?— as the " mountain [\ stand with arms in their hands? "We see by the 

I cannot conveniently come to Mohammed, is it not ij President's proclamation that he intends that the 
bettor for Mohammed to go to the mountain ?"*il hT.ws of that Territory shall be executed, as it is 



8 



■M 



his duty to do. Now, which side are you going 
to take, whenSharpe's rifles and Federal artil- 
lery are brought in array against each other in 
this threatened conflict? Ought we to do any- 
thing calculated to inspirit or encourage any mis- 
guided portion of the people of'-this country to 
put themseh'cs in open, hoslile, armed resistance 
to the laws? What is this but treason, as ex- 
pounded by our courts ? Our history, as a united 
people, dates back for more than seventy years; 
and no conviction for this highest crime known to 
society has ever, as yet, marred that history. No 
nation perhaps ever existed in the world so long, 
of which the same can be said. I feel the prouder 
of my country because it is so; and long may 
the day be hence before, if ever, such a case 
shall occur. I trust that my eyes, at least, will 
never see the light of that day when American 
soil shall be stained with a traitor's blood. Some 
persons in Kansas may have, under their delu- 
sion, gone very far; but I trust that the locus 
penitentia in every such heart will be found be- 



fore the last extreme step be taken. Let us be 
careful, at any rate, that we do nothing here in 
this matter which may tend to encourage them 
to take that step. Let it be our aim and our object 
rather to "pour oil on the troubled waters. "__ 
Ours is a government of laws. Let us, then, in 
our action in this case, set a good example, not 
only to the people of Kansas, but to the whole 
country, by adhering strictly ourselves to the 
principles and precepts of the laws e&tabhshed 
for the government of all our deliberations and 
proceedings here. This investigation proposes 
to lead us into an inquiry into subjects over 
v/hich I think I have clearly shown we have no 
proper or legitimate jurisdiction. Let us not, 
then, assume powers and prerogatives'which. do 
not belong to us, in our attempting to see if another 
body has not done it; and, particularly, let us not 
do it for bare party purposes, when the only 
effect of it may be to put in hazard the peace and 
quiet of tl/e country. These, sir, ai'e my views 
and opinions upon the proposition before us. 



Printed at the Office of the CoiigreSticnal Globe. 



LIBRARY OF CONGR^^^^^^^ 
' 016 089 343 6 < 



